Blackledge v Persons Unknown
Reference:  EWHC 1994 (QB)
Court: High Court, Queen’s Bench Division
Judge: Saini J
Date of judgment: 15 Jul 2021
Summary: Defamation – Libel – Harassment – Data Protection – Quantum – Damages – Injunction – Section 13 order
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Ben Hamer (Claimant)
Instructing Solicitors: Brett Wilson LLP for the Claimant
The Claimant is a senior and respected academic in politics and ethics. He was the victim of a campaign of online abuse in the form of blog posts posted anonymously on a website (and further disseminated on Twitter and by email). The posts made false and seriously defamatory allegations of sexual misconduct. The anonymous blogger cynically used the #MeToo debate as part of their strategy.
The Defendant(s) did not identify themselves. The Claimant brought a claim in (a) libel; (b) harassment; and (c) for breach of the GDPR against ‘Person(s) Unknown’ defined as being the authors, editors and publishers of the website https://metooucu.blogspot.com. The Claimant obtained default judgment and sought (i) damages; (ii) an injunction against the Defendant(s); and (iii) a section 13 order against the host of the website.
(1) Should the hearing proceed in the absence of the Defendant under CPR 39.3(1)?
(2) What sum of damages should be awarded?
(3) Should an injunction against the Defendant be made?
(4) Should an order under section 13 of the Defamation Act 2013 be made?
(1) Yes. The Judge was satisfied that he should proceed. It was unlikely that the real identity of those behind the website and blog posts would successfully be ascertained. The ProtonMail email address associated with the website (and which had been used to send emails to friends and associates of the Claimant) was used for alternative service of the claim. Section 12 of the Human Rights Act 1998 applied, but within the particular constraints posted by anonymous internet publications, the Claimant had taken all practical steps possible to notify the Defendant of both the originating process and this hearing.
(2) £70,000. A global sum should be awarded. There was a strong case for the application of the principle in Armory v Delamirie (1721) 93 ER 664 that to the extent there are gaps in evidence, the Defendant(s) should not benefit from their failure to engage or provide disclosure. The publication for each of the posts could be safely inferred to be in the high hundreds to the low thousands. The grapevine effect was a highly material matter and the inference could be drawn that academics will have shared the posts within their substantial communities. The Claimant also gave direct and compelling evidence as to his distress, despair and shock at the allegations.
(3) Yes. In circumstances where there was continued publication of the posts, an injunction should be made.
(4) Yes. It was highly unlikely that the Defendant(s) would comply with the injunction and where an injunction may not be effective an order under section 13 is an appropriate and proportionate remedy. An order requiring the host of the website to remove it was justified and wholly appropriate.
One of the first judgments ordering a third-party host to take down a website which contains defamatory publications. The judgment also provides valuable guidance in relation to defamation claims against persons unknown who operate online.
A substantial award of damages was made in this claim where while there was relatively limited online publication the percolation factor was highly material. The case also shows the application of the Armory principle in relation to claims against parties that refuse to engage.